Opinion
NO. 14-15-00519-CR
04-18-2017
JONATHAN ANTHONY SIROS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court Harris County, Texas
Trial Court Cause No. 1257392
MEMORANDUM OPINION
Appellant Jonathan Siros was convicted of capital murder by committing murder in the course of retaliating or attempting to retaliate against complainant Enrique Velasquez, who had served as a confidential informant for police. Appellant appeals his conviction in three issues.
First, appellant asserts the trial court erred when it denied his motion to suppress cell phone evidence. Appellant argues that some of the information that supported the issuance of a warrant to search appellant's cell phones was not independent of a prior warrantless search of the phones. We conclude the trial court did not err in denying appellant's motion to suppress because it excluded the tainted information regarding the prior search from its probable cause analysis. Second, appellant argues that the trial court erred when it refused his request to charge the jury on a lesser-included offense of aggravated assault. We hold appellant was not entitled to a charge on aggravated assault because there was no evidence suggesting appellant was guilty only of aggravated assault. Third, appellant argues there is legally insufficient evidence to support the verdict of the jury. We conclude evidence in the record was sufficient to support the verdict because several witnesses testified appellant threatened the complainant and there was evidence appellant hired someone to kill the complainant. Accordingly, we affirm.
BACKGROUND
In 2008, Officer Robert Bradley was working for the Houston Police in the Narcotics Department. Bradley received information about drug activity from a confidential informant. Based on this information, Bradley began investigating complainant Enrique Velasquez, appellant, and Juan Figueredo. During the course of his investigation, he also observed Rodney Washington, Emmanuel Valadez, Christopher Garcia, Stephen Siros (appellant's brother), and Matthew Roy.
The complainant was arrested in August 2008 and charged with possession of cocaine with intent to deliver. After receiving a call from the complainant's mother, Officer Bradley visited the complainant in jail. The complainant agreed to work as an informant and his case was dismissed. He was instructed to mingle back in with appellant and his group and to provide information to Officer Bradley.
Eventually, Officer Bradley had the complainant make a controlled buy at an apartment on Lockfield where drug activity was suspected. Officer Bradley then obtained and executed a search warrant for that location. After searching the apartment on Lockfield, Officer Bradley and his team arrested appellant, Stephen Siros, Matthew Roy, Emmanuel Valadez, Cristopher Garcia, and Robert Siros (appellant's father). Emmanuel Valadez was charged with tampering with evidence, while the others were released without any charges.
Appellant suspected that the complainant was a confidential informant after the Lockfield apartment raid. During the trial, witnesses testified that appellant said the following: the complainant was a "dead man walking"; appellant needed to "get him"; appellant "wanted to take care of him"; and the complainant "had to be capped." Juan Figueredo testified that appellant asked him for $6,000 to hire someone to kill the complainant. Figueredo testified that appellant initially gave Rodney Washington the money, but appellant got the money back from Washington. Figueredo testified that appellant said he then gave the money to someone named Ju, later discovered to be Judist Broussard, to murder the complainant.
The complainant was shot and killed outside his home in the early morning of November 19, 2009. Officer Bradley gave the homicide investigators a list of possible suspects, including appellant. After investigation, appellant was charged with capital murder. The jury convicted appellant of capital murder and he was sentenced to life imprisonment. This appeal followed.
ANALYSIS
In his third issue, appellant argues there was legally insufficient evidence to support the jury verdict. A successful challenge to the legal sufficiency of the evidence results in an acquittal, not a new trial. See Tibbs v. Florida, 457 U.S. 31, 41-42 (1982). Accordingly, we begin by addressing appellant's third issue because it affords the greatest relief. See Tex. R. App. P. 43.3; Campbell v. State, 125 S.W.3d 1, 4 n.1 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (stating reviewing court should first address complaints that would afford the greatest relief).
I. The evidence was legally sufficient to support the jury verdict.
Appellant argues there is legally insufficient evidence to support the jury verdict. Specifically, appellant argues that despite all the testimony, there was no evidence that showed who actually shot and killed the complainant. Also, even though appellant borrowed $6,000 to hire someone to kill the complainant, appellant contends there was no evidence connecting this activity to the murder. Appellant also posits that another drug dealer could have shot and killed complainant. We conclude the evidence at trial was legally sufficient to support the jury's verdict.
A. Standard of review
We review evidentiary sufficiency challenges under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The reviewing court must consider the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013).
The jury is the sole judge of the credibility of the witnesses and the weight to afford testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Juries are permitted to draw reasonable inferences from evidence presented at trial. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). The determination of whether the jury's inferences are reasonable is "based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). "Circumstantial evidence is as probative as direct evidence in establishing guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Id. at 13.
B. Applicable law
A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(2) (West 2011). A person commits capital murder if the person intentionally commits murder in the course of committing or attempting to commit retaliation. Id. § 19.03(a)(2). Retaliation is committed if a person intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a witness, potential witness, or informant. Id. § 36.06(a).
A person is criminally responsible for an offense if that person solicits, encourages, directs, aids, or attempts to aid another person to commit the offense with the intent to promote or assist its commission. Id. § 7.02(a)(2). Additionally, if in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. Id. § 7.02(b).
C. Sufficiency analysis
After reviewing the record, we conclude the evidence is sufficient to support appellant's conviction. Although motive generally is not an element of capital murder, it is relevant as a circumstance tending to prove guilt. Clayton v. State, 235 S.W.3d 772, 781 (Tex. Crim. App. 2007). In addition, for the particular type of capital murder at issue, retaliation is an element of the offense. Threats made toward the victim are relevant in showing the state of mind of a defendant. See Sturdivant v. State, 445 S.W.3d 338, 348 (Tex. App.—Houston [1st Dist.]), vacated on other grounds, 411 S.W.3d 487 (Tex. Crim. App. 2013) (per curiam) (circumstantial evidence including defendant's motive to harm the victim, defendant's statement that she wanted the victim killed, and defendant's comment about hiring a hitman was sufficient to support a murder conviction).
The State offered evidence that appellant had a retaliatory motive to kill the complainant. After the Lockfield apartment raid, Matthew Roy testified that appellant said the complainant was a "snitch." Juan Figueredo testified that appellant confirmed the complainant had a part in the Lockfield apartment raid. Figueredo also testified that appellant felt betrayed by the complainant. Emmanuel Valadez testified that appellant was mad at the complainant after the raid.
Several witness testified that appellant also made threats against the complainant after the raid. Figueredo testified that appellant said he "wanted to take care of" the complainant. Figueredo said it was clear that appellant "meant to have him killed." Roy testified that appellant said he needed "to get" the complainant. To Roy, that meant to kill the complainant. The complainant's cousin testified that appellant pulled up next to him and the complainant at a gas station and mumbled threateningly. Appellant then followed the complainant's cousin, and while stopped at a red light, yelled "y'all [expletive] cops" and "[expletive] snitches." Appellant told Bianca Lopez that the complainant was a "dead man walking." Gerardo Vattuone witnessed a confrontation between appellant and the complainant outside of club a few days before the complainant was killed. After Vattuone separated them, he overheard appellant on the phone saying that the complainant "had to be capped." To Vattuone, saying someone "had to be capped" meant to kill someone. A day later, Vattuone and appellant met in a Walgreens parking lot. Appellant told Vattuone that he was sure the complainant had a part in the Lockfield raid and the complainant was going "to pay for it." Vattuone told officers that appellant said he was going to "[expletive] up" the complainant and "kick [the complainant's] ass."
Moreover, as noted above, a defendant is criminally responsible for the conduct of an offense committed by another person if he solicits that person to commit the offense with the intent to promote its commission. Tex. Penal Code Ann. § 7.02(a)(2). Here, there was evidence that appellant hired someone to kill the complainant. Figueredo testified that appellant asked him for $6,000 to pay someone to kill the complainant. According to Figueredo, appellant initially hired Washington to kill the complainant. Figueredo testified that appellant got the money back from Washington, however, and hired Broussard to kill the complainant. Valadez overheard Broussard agree to kill the complainant. Call records also showed inbound and outbound calls between Broussard and appellant leading up to and immediately after the time of the murder. After the murder, appellant confirmed to Figueredo that Broussard had killed the complainant.
Based on the combined and cumulative force of the evidence viewed in light most favorable to the verdict, it was rational for the jury to find appellant guilty of capital murder beyond a reasonable doubt. Hooper, 214 S.W.3d at 16-17; Sturdivant, 445 S.W.3d at 348-49. Therefore, the evidence was legally sufficient to support the verdict. Appellant's third issue is overruled.
II. The trial court did not err in denying appellant's motion to suppress.
Appellant argues in his first issue that the trial court erred in denying his motion to suppress evidence obtained from appellant's cell phones because the affidavits supporting 2015 warrants to search the phones were tainted by information obtained in a prior warrantless search of the phones. We conclude the trial court did not err in denying appellant's motion to suppress because it excluded tainted information in analyzing whether the warrant was supported by probable cause.
A. The cell phone searches and the motion to suppress
Appellant and Figueredo were arrested in December 2009 pursuant to federal indictments for drug charges. The officers took possession of appellant's two cell phones and turned them over to the Drug Enforcement Administration. Federal authorities downloaded the data from the two cell phones without a warrant. During a federal debriefing, Figueredo told Officer Bradley and others that appellant had hired someone named Ju to kill the complainant. Officer Bradley then reviewed appellant's contact lists on the phones and found a contact listed as "Jew." Officer Bradley gave the phone number to Sergeant Cisneros, who was investigating complainant's murder. Sergeant Cisneros conducted research on that phone number and found that it belonged to Judist Broussard.
In February 2014, Officer Bradley obtained a search warrant for the two cell phones. The 2014 warrant was supported by information obtained from the 2009 warrantless search of the two cell phones. Later in 2014, the Supreme Court of the United States held that a warrant generally is required to search digital information on a cell phone, even if the phone is seized incident to arrest. Riley v. California, 134 S. Ct. 2473, 2493 (2014). Appellant filed a pretrial motion to suppress the cell phone evidence in 2015. Before the motion to suppress was heard, the State obtained two more search warrants for the two cell phones. The 2015 warrants are the warrants at issue on appeal.
Officer Bradley states in his affidavits supporting the 2015 search warrants that, during a federal debriefing, Figueredo said that he lent appellant $6,000 to have the complainant killed. Figueredo told him that initially "Wash" was going to kill the complainant, but that ultimately, appellant ended up paying "Jew" to kill the complainant. Officer Bradley also states that he spoke with Sergeant Cisneros, who had interviewed Judist Broussard in connection with the homicide investigation. According to the affidavit, Sergeant Cisneros told Officer Bradley that
Judist Broussard goes by the name of "Jew"; that his phone number is 713-585-1896; that [Broussard] knows a person by the name of Jonathan Siros and Jonathan Siros gave him money to have Enrique Velasquez killed; that [Jonathan Siros] hired a person by the name of Donald Strong to kill Mr. Velasquez; that he (Broussard) was present in the area at the time of the killing and that he heard gunshots; and that he called Jonathan Siros in the moments following the murder to advise him that Velasquez had been killed.Officer Bradley concludes his affidavit by stating that, based on his experience, the cell phones will likely contain additional information relevant to the capital murder.
At the hearing on the motion to suppress, the State argued that the information in the search warrants was independent from the information on the cell phones. Appellant responded that Figueredo's statements are not independent because his federal debriefing happened four months after the cell phones were seized. Further, appellant asserted that the information from Judist Broussard cannot be independent because he came to the State's attention from the cell phones that belonged to the defendant.
The trial court granted the motion to suppress as to evidence from the 2009 and 2014 searches of appellant's phones, but it denied the motion as to evidence obtained pursuant to the 2015 search warrants. At the hearing, the trial court concluded that the information from Judist Broussard recounted in the 2015 affidavits was not independent of the illegal warrantless search of appellant's cell-phone data. The trial court found, however, that there was still sufficient probable cause to search the cell phones based on the information in the affidavits regarding Figueredo's federal debriefing. Even though the trial court said it did not "excise" the information from Broussard in the affidavits, the record shows that the trial court did not consider this information in determining whether the affidavits provided probable cause.
At trial, the cell phone data was used to show that appellant's two cell phones had a contact named "Jew." Call records from appellant's third party cellular provider showed the incoming and outgoing phone calls between appellant and Judist Broussard around the time of the murder.
B. Standard of review and applicable law
We review the denial of a motion to suppress by giving almost total deference to the trial court's determination of historical facts and reviewing de novo the trial court's application of the law to facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The Texas exclusionary rule provides that no unlawfully obtained evidence shall be admitted in evidence against the accused. Tex. Code Crim. Proc. Ann art. 38.23 (West 2005). The independent source doctrine is an exception to the exclusionary rule. See Wehrenberg v. State, 416 S.W.3d 458, 468 (Tex. Crim. App. 2013) (holding that the independent source doctrine is consistent with the Texas exclusionary rule). The doctrine provides that evidence obtained separate and apart from any illegal conduct by law enforcement is not subject to exclusion. Id. at 465. The central question in determining whether evidence is admissible under the independent source doctrine is whether the evidence was obtained by independent legal means. Id.
A search warrant is not necessarily invalid if its supporting affidavit contains information derived from an illegal search. Instead, the court must exclude the tainted information "from the calculus" and determine whether the lawfully acquired, independent information in the affidavit nevertheless clearly established probable cause. State v. Cuong Phu Le, 463 S.W.3d 872, 877 (Tex. Crim. App. 2015). The warrant is valid "it if clearly could have been issued on the basis of the untainted information in the affidavit." Id.
C. The trial court excluded the tainted portion of the warrant affidavit from its determination of probable cause.
On appeal, appellant argues that the 2015 warrants were not wholly independent of and untainted by the 2009 warrantless search of appellant's phones. He argues that the interview with Broussard recounted in the affidavit is tainted because police discovered Broussard's identity using data obtained from the phones.
Appellant fails to acknowledge, however, that the trial court agreed with him that the information from Broussard was not independent of appellant's cell phone data. The court excluded Broussard's information from its analysis and concluded that there was still sufficient probable cause stated in the affidavit. Appellant does not argue that the information in the affidavit from Juan Figueredo was tainted, nor does he challenge the trial court's determination that this information nevertheless clearly established probable cause. We therefore overrule appellant's first issue
III. The trial court did not err in denying appellant's request to charge the jury on a lesser-included offense of aggravated assault.
Appellant argues that the trial court erred when it refused his request for a jury charge on the lesser-included offense of aggravated assault because a portion of Gerardo Vattuone's testimony could be interpreted as evidence that appellant only desired to injure the complainant. The State responds that in light of the evidence presented at trial, no rational jury could have concluded that appellant committed only the lesser-included offense of aggravated assault and not capital murder.
Vattuone speaks Spanish and testified through an interpreter. Vattuone worked as a doorman at Pleasures Cabaret. A few days before the complainant was killed, Vattuone witnessed a confrontation between appellant and the complainant outside Pleasures. After Vattuone separated them, he overheard appellant on the phone saying that the complainant "had to be capped." Vattuone testified that "had to be capped" meant to kill someone. Vattuone also testified that the Spanish word he heard appellant use when talking on the phone literally meant "to give gas" in English. He said that "to give gas" in Spanish means "to hurt someone, to give someone a beating." Vattuone believed, based on his interactions with appellant and his life experience, that what he heard appellant say on the phone meant that "the other person could be hurt."
The day after the altercation at Pleasures, Vattuone spoke with appellant in a Walgreens parking lot. Vattuone testified that appellant told him that appellant was sure the complainant "had pinned the finger on him" and that "he was going to pay for it." Vattuone recalled telling police that appellant said he was going to "[expletive] . . . up" the complainant. Vattuone also testified he remembered telling a police officer that appellant said he was going to "kick [the complainant's] ass."
Defense counsel requested that the jury be charged regarding murder and aggravated assault as lesser-included offenses, arguing that Vattuone's testimony would negate the intent necessary for capital murder. Specifically, counsel argued that language in Vattuone's testimony such as "capped," "kick his ass," and "[expletive] him up" raised an issue regarding whether appellant lacked the intent to kill. Defense counsel argued the lesser-included offenses could be "murder by committing an act clearly dangerous" and "aggravated assault intending to cause serious bodily injury." The trial court denied these requests.
On appeal, appellant argues only that the lesser-included offense of aggravated assault should have been charged. According to appellant, Vattuone's testimony that appellant was going to "[expletive] . . . up" the complainant could have been interpreted as a desire only to injure the complainant without the specific intent to kill required for a capital murder conviction.
A. Standard of review and applicable law
When reviewing an alleged error in the jury charge, we first determine whether error actually exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we then determine whether it is harmful using the framework outlined in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). See Hung Phuoc Le v. State, 479 S.W.3d 462, 472 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
To determine whether a trial court erred in refusing a request to instruct the jury on a lesser-included offense, we employ a two-step analysis. Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). First, we determine whether the lesser-included offense is included within the proof necessary to establish the offense charged. Id. Second, we look for evidence in the record that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Id. "In making this decision, the court evaluates the evidence in the context of the entire record, but does not consider whether the evidence is credible, controverted, or in conflict with other evidence." Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). There must be more than a scintilla of evidence that establishes the lesser-included offense as a valid, rational alternative to the offense charged. Forrest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). The jury is provided with a rational alternative when the evidence raising the lesser-included offense also casts doubt upon the greater offense. Id. "It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather, there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on the lesser-included offense is warranted." Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997).
Aggravated assault is a lesser-included offense of capital murder. See Jackson v. State, 992 S.W.2d 469, 475 (Tex. Crim. App. 1999); Forest, 989 S.W.2d at 367. Our analysis, therefore, focuses on the second part of the test.
B. Appellant was not entitled to the lesser-included offense charge of aggravated assault because there is no evidence suggesting appellant was guilty only of aggravated assault.
A person commits aggravated assault if he intentionally, knowingly, or recklessly causes serious bodily injury to another. Tex. Penal Code Ann. § 22.02(a)(1) (West 2011). "Serious bodily injury" is "injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(46).
As noted above, Vattuone testified that he overheard appellant say that the complainant "had to be capped," which Vattuone understood to mean killed. Vattuone also testified that appellant threatened to hurt the complainant. But the addition of those lesser threats is not the same as testimony that appellant lacked the intent to kill. See Arnold v. State, 234 S.W.3d 664, 672 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding evidence of lack of intent to kill and evidence of lesser mental state is required to raise lesser-included offense of manslaughter). Vattuone's testimony did not cast doubt on appellant's intent to kill, and therefore was not evidence establishing aggravated assault as a valid, rational alternative. See id.; Forrest, 989 S.W.2d at 367. We overrule appellant's second issue.
CONCLUSION
Having overruled each of appellant's issues, we affirm the trial court's judgment.
/s/ J. Brett Busby
Justice Panel consists of Justices Busby, Donovan, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).